California Court: Cities Can Ban Pot Shops

Neither the state's voter-approved law legalizing medical marijuana nor a similar measure by the Legislature can bar local governments from prohibiting storefront dispensaries, the state's highest court ruled.

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In October 2011, the North County Collective closed its doors. The NCTimes reported it was the last of the medicinal marijuana dispensaries in Oceanside. Lance Rogers, a lawyer for North County Collective, said the dispensary ran out of money to continue to challenge the city in court.

The California Supreme Court said neither the state's voter-approved law legalizing medical marijuana nor a companion measure adopted by the Legislature prevent local governments from using their land use and zoning powers to prohibit storefront dispensaries.

The ruling came in a legal challenge to a ban enacted by the city of Riverside in 2010.

"While some counties and cities might consider themselves well-suited to accommodating medical marijuana dispensaries, conditions in other communities might lead to the reasonable decision that such facilities within their borders, even if carefully sited, well managed, and closely monitored, would present unacceptable local risks and burdens,'' Justice Marvin Baxter wrote for the seven-member court.

The advocacy group Americans for Safe Access estimates another 200 jurisdictions statewide have similar prohibitions on retail pot sales. Many were enacted after the number of retail medical marijuana outlets boomed in Southern California after a 2009 memo from the U.S. Justice Department said prosecuting pot sales would be a low priority.

However, the rush to outlaw pot shops has slowed in the 21 months since the four federal prosecutors in California launched a coordinated crackdown on dispensaries by threatening to seize the property of landlords who lease space to the shops. Hundreds of dispensary operators have since been evicted or closed voluntarily.

At least 180 cities across the state and Bay Area have enacted bans in recent years, from Hollister to Petaluma to Moraga. But the region's largest cities, San Jose, San Francisco and Oakland, have permitted the dispensaries, taxing the revenues while communities in between increasingly become dispensary-free zones.

Marijuana advocates have argued that allowing local governments to bar dispensaries thwarts the intent of the state's medical marijuana law - the nation's first - to make the drug accessible to residents with doctor's recommendations to use it.

Riverside city lawmakers used their zoning authority to declare storefront pot shops as public nuisances and ban the operations in 2010. The Inland Empire Patient's Health and Wellness Center, part of the explosion of retail medical marijuana outlets, sued to stop the city from shutting it down.

A number of counties and cities were awaiting the Supreme Court ruling before moving forward with bans of their own.

A mid-level appeals court previously sided with the city of Riverside, but other courts have come to opposite conclusions. Last summer, a trial judge ruled that Riverside County could not close medical marijuana dispensaries in unincorporated areas because the move did not give the shops any room to operate legally under state law.

Meanwhile, an appeals court in Southern California struck down Los Angeles County's 2-year-old ban on dispensaries, ruling state law allows cooperatives and collectives to grow, store and distribute pot.

The Supreme Court's decision might not be the last word on the issue, however. Pending legislation would establish a new statewide system for regulating and licensing the medical marijuana industry and clarify the role of dispensaries in it.

Activists also are in the early stages of planning a ballot initiative that would legalize the recreational use of marijuana and regulate it like alcohol, as voters in Washington and Colorado did last year.